The archived blog of the Project On Government Oversight (POGO).

Dec 20, 2010

Systemic Failures That Set the Stage for WIkiLeaks, and Other Notes for a Panel Discussion

POGO Executive Director Danielle Brian recently participated in a panel discussion on secrecy, journalism and WikiLeaks. The discussion was part of a one-day conference presented by Harvard’s Nieman Foundation for Journalism. Since WikiLeaks touches on so many aspects of POGO’s work, we thought we would post the notes she prepared for the discussion. You can watch video of the discussion here. Without further ado, the notes for Nieman:

POGO was created by Pentagon whistleblowers nearly 30 years ago who wanted a voice so they could try fixing serious problems and still be protected.

POGO evolved over time to rely on those inside sources as a requirement for taking on a case (we only take one percent of what comes through our doors) but we also apply standard investigative journalism standards to our work. We begin our work on a case as investigators, but we then advocate for the reforms we believe will fix the policy failures we uncover. As a result, we are both a whistleblower and transparency advocacy organization.

Systemic Failures That Set the Stage for WikiLeaks Disclosures

1. Lack of safe, credible avenues to disclose classified wrongdoing

The legislative protections we are working to get passed will only protect lawful disclosures of information. The lack of safe, credible avenues for disclosures is leading people who know of wrongdoing to go to the press and groups like WikiLeaks.

I have to repeat this point: the Whistleblower Protection Enhancement Act, if passed, would not have protected Bradley Manning.

Manning needed mentoring—mentoring that would have helped him to focus his leaks and protect him from prosecution while also protecting legitimate national security secrets from being compromised.

When we believe there are legitimate secrets, we at POGO will try to work through government channels first to correct the wrongdoing. I don’t know what WikiLeaks did or didn’t do. I can only speak to what we would have done. However, we acknowledge there are times, even after working through existing channels (and there are not adequate channels to disclose wrongdoing that is classified), it may ultimately be necessary to go public with the information. We have not been faced with a document dump of the size of the latest WikiLeaks disclosures, but have certainly worked with many whistleblowers who want to disclose wrongdoing that involves classified or otherwise sensitive information.

A case study: Just as 9/11 occurred we were finishing a report that involved numerous sources concerned about inadequate security of highly-enriched uranium and plutonium stored at labs in the U.S. nuclear weapons complex. The particular concern was that an improvised nuclear device (IND) was possible—meaning not a dirty bomb, but an actual detonation. And over time, some of these labs—like Lawrence Livermore Lab—have become surrounded by residential areas. The problem was even talking about an IND was classified at a level higher than Top Secret—it was a Special Access Program. We briefed Congress, the National Security Council, and the Nuclear Command and Control Staff. Finally, we were advised by officials to just go public with it, because bureaucracies were not going to budge without external pressure. As a result, security has significantly improved, with the Government Accountability Office (GAO), the National Academy, the Council on Foreign Relations and others now actively discussing INDs as if they always knew about that potential vulnerability.

In addition to challenging what has already been classified, in three different occasions the government has retroactively classified information in our investigations. In the mid-1990’s when we were investigating environmental crimes at the then-“Black” facility Area 51, the government denied the existence of the site. When we discovered an employee’s manual for the site, the government retroactively classified the manual, which was only labeled "for official use only" and "do not remove from site" and demanded that anything that referred to it, including POGO funding proposals, be protected by the court and turned over. Now video games and the local minor league baseball team are named after Area 51. In another case, the FBI retroactively classified the languages spoken by a contract translator—in that case the Justice Department backed down on the eve of trial in POGO v. Ashcroft. And in a more recent case, Robert MacLean, a former Federal Air Marshall, was fired for disclosing Sensitive Security Information (not a legitimate classification) even though the information was not marked as such at the time he made it public.

As Bill Keller wrote, “the government must not have veto over what the public knows.”

2. Overclassification of information

The Associated Pressreported this week that one of the cables disclosed by WikiLeaks was marked “confidential” despite its seemingly innocuous contents. The cable explained that Canada will be our ally no matter who wins office in their elections. That’s clearly a silly use of the “confidential” label, and is a nice example of the government’s lax and abusive use of classification to withhold information from the public.

Some underutilized tools to fight overclassification: Mandatory Declassification Reviews, the Public Interest Declassification Board, and even the Congress, which also has the power to declassify.

3. Breakdown of basic information security

We have been pushing for years to get sensitive facilities to prevent the use of external hard drives, thumb drives, etc. I understand these issues are being taken more seriously now, but frankly it is extraordinary it took this long. And there are other security issues. It was obviously unnecessary and risky for persons like PFC Manning to have unsupervised access to tens or hundreds of thousands of classified documents.

What Has Changed for POGO?

Not all that much. “Is WikiLeaks a journalism org?” is really the wrong question—it doesn’t matter to us. The First Amendment is not limited to protecting the press—it protects speech. Not only does POGO serve a similar function to WikiLeaks, but I would argue that the distinction between source and outlet is becoming so blended that it doesn’t really matter how journalism is defined for the purposes of the First Amendment.

Remember: the First Amendment was written long before modern journalism existed. It was written at a time when individuals printed their own political treatises and passed them out in the street—those were the people who the crafters of the Constitution wanted to protect. I don’t accept the argument that the intent of the leaker matters—that Julian Assange may be an anarchist and has an agenda doesn’t matter. Executive Branch officials have an agenda too. Why is one case generally accepted as protected speech and not the other?

We think a prosecution of WikiLeaks or Assange for publishing the Afghan or Iraq War Logs, or the State Department cables could be a solution worse than the problem with grave implications for free speech and freedom of the press.

But I would suggest that just because the laws do protect WikiLeaks does not mean they have acted as heroes, or have even acted responsibly. From our perspective, with the rights afforded to us under the Constitution come responsibilities. WikiLeaks appears to be catching up to that notion. I know of specific interpreters in Afghanistan and Iraq whose names were released in the Afghanistan and Iraq war logs. No, they haven’t been killed yet—but really, is that the standard? WikiLeaks has evolved significantly since their origins, when they first came to us and bragged that they would impose no filters on their disclosures. In the recent round, I understand they didn’t expose cables until The New York Times and others vetted, redacted and disclosed documents. But when it comes to what should or should not be disclosed, I know that question is messy and people have different sensibilities of what the public interest is.

This should ultimately, in our view, be a question of journalism ethics and of professional standards. Rather than blindly defer to government assertions about the need to keep information under wraps, the press should have the freedom to make independent judgments about what is published, but should seek to make informed decisions that weigh the costs of publishing sensitive information against the benefits. News agencies also owe their audiences a candid and transparent explanation when they decide to publish sensitive information.

So the rise of the internet and the WikiLeaks episode doesn’t really change how POGO does its work. In limited instances, we have consulted with government officials, and in a few cases released sensitive information due to the harm to the public that was created by its concealment. Disclosure was not an end in itself. Yes, it’s easier to receive and copy documents than when I began working at POGO many years ago. But from my perch in D.C., the focus all seems to be misdirected and barn-door-closing, rather than focused on resolving the critical systemic policy failures that should be addressed.

What Should Happen Next

Rather than focusing on chasing Assange, closing down WikiLeaks or passing laws that conflict with the First Amendment, the Congress should be creating safe channels for disclosure; developing a more thoughtful classification and declassification policy; and ensuring reasonable information security for legitimate secrets.

Instead, we are getting legislative proposals like the Ensign/Lieberman/Brown bill, which is eerily like the so-called Official Secrets Act that passed the Congress during the Clinton Administration, but was thankfully vetoed by that President. Today however, I would expect President Obama to embrace such legislation, so we can’t count on that veto backstop. To scare you a little and give you a sense of what we will be fighting next year, this bill defines “classified information” as “information which is…specifically designated by a U.S. government agency for limited or restricted dissemination or distribution”—so restrictions are not even limited to legitimately classified information and will have an extraordinary chilling effect on government openness.

In cases when the identity of the whistleblower is disclosed—like Dan Ellsberg with the Pentagon Papers and Thomas Tamm, the Department of Justice (DOJ) lawyer who exposed the government’s illegal, warrantless wiretapping program, where whistleblowers were forced to break the law in order to stop lawbreaking by the government—we would argue that the DOJ should exercise prosecutorial discretion based on the public good achieved by the disclosure of significant wrongdoing. Just because the government has the power to prosecute government employees for illegal leaks of classified information does not mean the government should always prosecute. From our perspective the jury is still out on public policy value of the WikiLeaks disclosures.

While I expect we will be busy putting out those fires next year, hopefully we will also be successful fixing some of those systemic failures that created this situation in the first place.